Court of Appeals of Texas,
Robert S. BELL, M.D., Appellant,
TEXAS WORKERS COMPENSATION COMMISSION and Richard F. Reynolds in his official capacity as Executive Director of Texas Workers Compensation Commission, Appellees.
March 20, 2003.
Attorneys & Firms
*300 H. Douglas Pruett, H. Douglas Pruett, P.C., Austin, for appellant.
Dewey E. Helmcamp III, Assistant Attorney General, Administrative Law Division, Austin, for appellees.
Before Chief Justice PURYEAR.
BEA ANN SMITH, Justice.
This is an interlocutory appeal from a denial of a temporary injunction.1 Some eighty-five percent of Robert S. Bell, M.D.’s orthopedic surgery practice involves workers compensation patients. Dr. Bell sued the Texas Workers Compensation Commission (“Commission”) because it removed him from its list of approved doctors when his license to practice medicine was revoked as a result of a felony conviction. Removal from the list means Dr. Bell cannot treat patients covered by workers compensation insurance. Dr. Bell and another similarly situated *301 physician2 brought suit against the Commission asserting that their rights to due process of law under the United States and Texas Constitutions were violated when they were deleted from the list of approved doctors without an administrative hearing. After obtaining a temporary restraining order, the doctors sought a temporary injunction prohibiting the Commission from removing them from the approved list while this suit for declaratory relief is pending. Their application was denied, and Dr. Bell alone appeals. We will affirm the trial court’s denial of a temporary injunction.
FACTUAL AND PROCEDURAL BACKGROUND
On October 18, 1999, Dr. Bell pleaded nolo contendere to a third-degree felony of deadly conduct. The conviction arose from Dr. Bell driving by his former business partner’s home and firing several rounds from his 9–mm semi-automatic pistol into the home while the former business partner’s family was present. Dr. Bell also admitted to four other drive-by shootings. Punishment was assessed at one hundred twenty days in jail and eight years of maximum-supervision probation, with conditions that he perform six hundred hours of community service, pay a five thousand dollar fine and restitution, and undergo psychiatric counseling for three years.
On August 26, 2000, the State Board of Medical Examiners and Dr. Bell entered into an agreed order that found Dr. Bell guilty of unprofessional or dishonorable conduct likely to deceive, defraud, or injure the public, specifically the felony offense of deadly conduct.3 Dr. Bell’s license to practice medicine was suspended, but the suspension was stayed and he was placed on probation for five years.
On May 6, 2002, the Commission sent Dr. Bell written notice that he was to be removed from the list of approved doctors pursuant to the workers compensation act. 28 Tex. Admin. Code § 180.26(b)(4) (2002).
Dr. Bell responded to the notice by objecting to his deletion from the approved list and requesting a “progressive disciplinary agreement.” Dr. Bell described himself as a “sanctionee.” On May 23, 2002, Dr. Bell requested an administrative hearing. On May 30, the Commission advised Dr. Bell that he was not entitled to an administrative hearing under the workers compensation act or the Commission’s rules. The letter also advised Dr. Bell that he could apply for reinstatement to the list if “he had all appropriate unrestricted licenses/certifications, [and] had overcome the conditions which resulted in the deletion.”
*302 Dr. Bell contends that the trial court abused its discretion by denying the temporary injunction because the evidence shows his probable right to recovery and the irreparable harm he will sustain if it is not granted. He argues that his right to treat injured workers in the workers compensation system is a constitutionally-protected property right that he has been deprived of without due process. He argues that (1) section 408.0231 of the workers compensation act contains an implied right to an administrative hearing; and (2) the Commission is not relieved of its obligation to conduct a hearing merely because he had a right to a hearing prior to the Board of Medical Examiners suspending his license.
Standard of Review
The purpose of a temporary injunction is to preserve the status quo pending trial on the merits. Butnaru, 84 S.W.3d at 204.
We review the denial of a temporary injunction by asking whether the trial court clearly abused its discretion. See Thompson, 24 S.W.3d at 576.
Mandatory Removal of Doctor
The Commission maintains a list of licensed doctors who are approved to provide health care services to injured workers covered by workers compensation insurance. § 408.0231(b)(1).
Administrative rule 180.27(f) prescribes the process the Commission must follow to delete a doctor’s name from the approved list.6 The doctor is notified of the impending deletion and the grounds for that action, and is given fourteen days to contest the validity of those grounds. This procedure provides notice and an opportunity to be heard, but limits the scrutiny to an objective determination about whether the mandatory grounds for deletion exist.
It is conclusively established in this record that Dr. Bell (1) was removed from the approved list of doctors under rule 180.26(b); (2) received notice of the Commission’s intent to remove him and its asserted grounds; and (3) responded in writing and requested a hearing, but did not contest the existence of the grounds for mandatory removal.
Implied Right to a Hearing
Dr. Bell raises only procedural due process claims on appeal, arguing that the Commission violated his constitutional right to due process and due course of law7 by removing him from the list of approved doctors without affording him a meaningful opportunity to contest the Commission’s action. The only question before us in this interlocutory appeal is whether the trial court clearly abused its discretion in denying the temporary injunction. After evaluating Dr. Bell’s probable right to recovery on his claim that the act implies a full administrative hearing before he can be removed from the list, we hold that the trial court was within its *304 discretion in denying the temporary injunction.
Questions of procedural due process require an analysis of (1) whether the plaintiff has a constitutionally protected property or liberty interest at stake, and (2) if so, what process is due to sufficiently protect that interest. See University of Tex. Med. Sch. v. Than, 901 S.W.2d 926, 930 (Tex.1995).
Exactly what process is due in a given situation is measured by a flexible standard that depends on the practical requirements of the circumstances. Than, 901 S.W.2d at 930.
We address the first factor by noting that the constitutional right asserted by Dr. Bell is the right to treat injured workers covered by workers compensation insurance, not the right to practice medicine. Without deciding whether there is a constitutionally protected interest in the right he asserts, we distinguish his claimed right from the established right to due process before removal of a professional license. Cf. section 408.0231(a)(3).
Pursuant to rule 180.27(f)(2), Dr. Bell received notice of the Commission’s intent to delete him from its approved list and the grounds for removal. The rule provides a fourteen-day period in which a doctor may contest removal; however, the contest is limited to whether grounds exist for mandatory deletion under rule 180.26(b). In Dr. Bell’s case, his contest could only address whether his license had been revoked by the Medical Board. A license revocation triggers automatic removal of a doctor from the approved list. See Tex. Lab.Code Ann. § 408.0231(a)(3).
In O’Dowd, two attorneys were alleged to have engaged in unethical and fraudulent conduct in connection with their handling of workers compensation cases before the Industrial Accident Board (“IAB”).8 The relevant statute provided for a three-year suspension of anyone found guilty of unethical or fraudulent conduct in matters within the IAB’s purview. The IAB had the discretion to determine if there had been such conduct. The statute was silent about whether the attorneys were to receive notice and a hearing before they were suspended for three years.9 Nevertheless, the IAB provided the two attorneys with notice and a full administrative hearing before finding them guilty of unethical and fraudulent conduct and barring them from practice. The attorneys challenged the constitutionality of the statute because it did not expressly provide for prior notice and a hearing, even though they were accorded both.
In light of its duty to construe statutes in harmony with constitutional requirements if possible, the court determined that the statute provided for notice and a hearing by implication, as the IAB had interpreted. section 408.0231 or rule 180.27(f) in this appeal. The IAB in O’Dowd investigated and adjudicated allegations of fraudulent conduct by the two attorneys involved. The statute afforded the IAB discretion to remove the attorneys after adjudicating the allegations against them. O’Dowd stands only for the proposition that if a statute does not expressly rule out a hearing, it is error to hold that statute invalid when the agency has implied into the statute the requirement of notice and a hearing.
By contrast, section 408.0231(a)(3) mandates a doctor’s removal from the approved list upon certain objective grounds and authorizes the Commission to promulgate rules governing such removals. The Commission’s rules provide for notice and the right to contest the validity of the grounds for removal. Nothing in the statute affords any discretion to the executive director about removing a doctor whose license has been suspended.
The Board of Medical Examiners either revoked Dr. Bell’s license to practice medicine or it did not. That is the only fact to be determined before Dr. Bell must be removed under section 408.0231(a)(3) and rule 180.26(b).
Due process does not require the holding of a useless hearing when there are no factual disputes to resolve. See Limon v. State, 947 S.W.2d 620, 627 (Tex.App.-Austin 1997, no pet.) (“We note that a hearing on an applicant’s failure to *306 post a bond would seem to us to be meaningless; a bond is either posted or it is not.”).10
Due process requires only a procedure that assures Dr. Bell that the Commission’s action is not baseless or unwarranted. The Board of Medical Examiners afforded Dr. Bell the process he was due before his license was suspended. The procedure he was accorded before the Commission was sufficient to allow him to contest the objective criteria for his deletion from the approved list. His removal was neither baseless nor unwarranted. Implying a right to a full-blown hearing would not be of benefit considering the mandatory nature of the statute’s directive to remove from the approved list a doctor whose license has been suspended.
We hold that Dr. Bell has not established a probable right to recovery sufficient to show that the trial court abused its discretion by denying his request for a temporary injunction.
For the reasons set forth, we affirm the denial of the temporary injunction.
See Tex. Civ. Prac. & Rem.Code Ann. § 51.014(4) (West 1997).
Booker T. Rogers, Jr., M.D. is an anesthesiologist who was also deleted from the list of approved doctors because his medical license was suspended. He pleaded nolo contendere to charges of child pornography and admitted to drug abuse. He received deferred adjudication for the criminal charges and his license suspension was probated for five years by the State Board of Medical Examiners. Dr. Rogers did not appeal the trial court’s denial of his request for a temporary injunction.
See Medical Practices Act, Tex. Occ.Code Ann. § 164.052(a)(5) (West 2003).
An applicant for a temporary injunction need not prove that he or she will prevail at trial; rather the burden is to show a probable right to recovery following a trial on the merits. Universal Health Servs. v. Thompson, 24 S.W.3d 570, 576 (Tex.App.-Austin 2000, no pet.).
An irreparable injury is one that “cannot be adequately compensated in damages or if the damages cannot be measured by any certain pecuniary standard.” Butnaru v. Ford Motor Co., 84 S.W.3d 198, 204 (Tex.2002).
Subsection 180.27(f) provides in full:
(f) Notwithstanding any other provision of this section, deletion from the Approved Doctor List by the Executive Director pursuant to § 180.26(b) shall be governed by this subsection.
(1) Prior to deletion, the Executive Director or designee shall notify a doctor of the intention to delete the doctor and the grounds for that action.
(2) Within 14 days after receiving the notice of intent, a doctor may file a response to the reasons given as grounds for the deletion with the Executive Director or designee.
(A) If a response is not received by the 15th day after the date the doctor received the notice of intent, the doctor is deleted and no subsequent notice will be sent.
(B) If the response is agreement, the doctor will be deleted effective on the earlier of the date the doctor agrees to the deletion or the 15th day after the date the doctor received the notice of intent and no subsequent notice will be sent.
(C) If a response which disagrees with the grounds for deletion is timely received and after reviewing the response, the Executive Director or designee determines:
(i) that the grounds do not exist for deletion under § 180.26(b); or
(ii) that the grounds for deletion do exist, the doctor shall be notified of the deletion and the notice shall identify the effective date of the deletion.
(3) All notices under this subsection shall be delivered by verifiable means.
28 Tex. Admin. Code § 180.27(f) (2002).
It is well settled that although the due process clause of the Fourteenth Amendment and the due course of law provision of the Texas Constitution differ in their language, the differences “are without meaningful distinction.” Limon v. State, 947 S.W.2d 620, 626 n. 6 (Tex.App.-Austin 1997, no pet.).
The Industrial Accident Board was the administrative predecessor of the current Texas Workers Compensation Commission.
Today, Tex. Lab.Code Ann. § 408.0231(b)(1) (West Supp.2003).
See also Alvin v. Suzuki, 227 F.3d 107, 121 (3d Cir.2000) (“There was simply no factual dispute that a pre-deprivation notice or hearing could have addressed.”).